This will be interesting. Madonna has reportedly uploaded “decoy” files to peer-to-peer networks, in order to discourage piracy. Users who believe that they are downloading Madonna’s new album receive instead a recorded admonition from Madonna herself advising the user to respect the copyright in her work (not precisely in those words).

When the record companies began ‘spoofing’ the P2P networks, I wondered aloud what precisely might happen if it became known that an artist was disseminating low-quality or no-quality versions of one’s own work under one’s own trademark, and I referred to one possibility as self-tarnishment.

Well, from a branding point of view (which is what I had in mind when I said what I said), we are seeing something of a backlash against Madonna. Look at the comment thread here filled with threats never to buy her records again. Also, her website has been hacked. Whether she makes this back with re-gained sales, hard to tell.

The trademark analyis is more complex. This assertion that Madonna is possibly abandoning her mark may go too far. In any event, how Madonna could be said to abandon her mark to the point that she couldn’t prevent another recording artist from naming themselves Madonna is hard to imagine.

The trademark analysis may hinge on the legality of a ‘normal’ transaction on a peer to peer network and the user’s expectations. When someone is downloading a copy of an album from a peer to peer network, and they believe that they are downloading an unauthorized copy of a copyrighted work (or have an objectively unreasonable belief that they are authorized to download the work), is that transaction even considered to be lawful commerce? Does the law protect infringers from being deceived?

On the other hand, if these P2P transactions are legal, well, then, the spoofer might have some problems, trademark and otherwise.